In 2015, in what is popularly called the NJAC case, the Supreme Court declared Article 124A to be unconstitutional and struck down the Constitution (99th Amendment) Act, 2014. It also declared the NJAC Act, 2014 to be bad in law as a consequence.
The net effect of this judgment was to ‘reaffirm’ the supremacy of the collegium system – ushered into the constitutional scheme by a series of judgments of the Supreme Court known commonly as the Second and Third Judges cases.
In so doing, the Supreme Court has followed, what according to it is, the cardinal principle – “the independence of the judiciary” – which necessitated consultation by the executive with the highest dignitary in the judiciary – the chief justice of India. It means that “the primacy in the matter of appointment and transfer of judges to the higher judiciary must rest with the judiciary”.
Justice J.S. Khehar, speaking for the court, observes in the NJAC judgment:
“309. It is surprising that the Chief Justice of India on account of the position he holds as paterfamilias of the judicial fraternity, and on account of the serious issues that come up for judicial adjudication before him, which have immeasurable political and financial consequences, besides issues of far-reaching public interest, was suspected by none other than Dr. B.R. Ambedkar during the course of the Constituent Assembly Debates when he declined to accept the suggestions made by some Members of the Constituent Assembly that the selection and appointment of Judges to the higher judiciary should be made with the “concurrence” of the Chief Justice of India by observing that even though the Chief Justice of India was a very eminent person, he was after all just a man with all the failings, all the sentiments, and all the prejudices, which common people have…Was the view of the Constituent Assembly, and the above noted distrust, legitimate?”
But recent events have proven Dr Ambedkar to be quite right.
The learned judge then refers to the concept of the Legitimate Power of Reciprocity, and relying on an article by Bertram Raven concludes:
“310…In the view expressed by the author, the inherent need of power is universally available in the subconscious of the individual. On the satisfaction and achievement of the desired power, there is a similar unconscious desire to reciprocate the favour.”
He goes on to discuss the psychological concept of the legitimate power of reciprocity. Relying on an article by Cornell University professor Dennis Regan, he declares:
“311…It was pointed out that there was sufficient evidence to establish that favours do generate feelings of obligation and the desire to reciprocate. According to the author, the available data suggested that a favour would lead to reported feelings of obligation on the part of its recipient.”
Justice Khehar also refers to a book titled Influence: The Physiology of Persuasion by Robert Cialdini.
“312…Possibly one of the most potent compliance techniques was the rule of reciprocation which prompts one to repay what someone has given to him. When a gift is extended, the recipient feels indebted to the giver, often feels uncomfortable with this indebtedness, and feels compelled to cancel the debt … often against his or her better judgment.”
Therefore, he concludes:
“315. The consideration recorded hereinabove endorses the view that the political-executive as far as possible should not have a role in the ultimate or final selection and appointment of Judges to the higher judiciary. Specially keeping in mind the enormity of the participation of the political-executive in actions of judicial adjudication, reciprocity and feelings of payback to the political-executive would be disastrous to the “independence of the judiciary…”
Quite a learned discourse. But Justice Khehar completely ignores the ‘reciprocity’ that is well rooted amongst the members of the collegium particularly, and amongst judges generally.
Collegiums function under a cloud of secrecy and what is put out is only the tip of the iceberg. It is, therefore, not easy to dissect their actions. But considering that the salutary principle of appointing ‘the best from amongst those available’ is followed in breach, it is clear that merit is often sacrificed.
The last few years of the functioning of collegiums across the high courts and Supreme Court leaves no manner of doubt that more often than not, selection of judges to the higher Judiciary has been made on ‘reciprocity’ amongst the Collegium members. They have clearly followed the age-old principle of give and take, or more colloquially, ‘You scratch my back, I will scratch yours’.
In S.P. Gupta’s case in 1981, judges reminded themselves:
“Judges should be of stern stuff and tough fibre, unbending before power, economic or political and they must upload the core principle of the rule of law which says, ‘Be, you even so high, the law is above you’”.
In the Second Judges case (Supreme Court Advocates-on-Record Association and another vs Union of India), they reminded all, except themselves perhaps:
“It is, therefore, time that all the Constitutional Functionaries involved in the process of appointment of Superior Judges should be fully alive to the serious implications of their Constitutional Obligations and be zealous in its discharge in order to ensure that no doubtful appointment can be made. This is not difficult to achieve”.
The law so declared now commands only those to be appointed “who combine the attributes essential for making an able, independent and fearless judge” and possess “legal expertise, ability to handle cases, proper personal conduct, and ethical behaviour.”
In last two decades, the murmurs in the Bar, the muted voices, the frustration of litigants and their doubts about judgments and orders produced by judges across the country leave little room for doubt that the selection process has faltered horribly. This is not to say that all judges are bad. But few questionable appointments in recent years have not done service to the great institution of the judiciary.
But the collegium does function as imperium in imperio, and are accountable to none. No one can question them and virtually no one does. ‘Reciprocity’ takes over.
Take for example the recent decision of the Supreme Court Collegium to recommended the elevation of two judges – Justice B.R. Gavai and Justice Surya Kant. The decision comes on the heels of the report of the in-house committee headed by Justice S.A. Bobde which gave a clean chit to the CJI regarding the sexual harassment allegations made against him by a woman employee who worked closely with him.
Justice Gavai is known to be extremely close to Justice Bobde, while Justice Surya Kant is perceived to be a pick of the chief justice himself. Reciprocity is writ large.
Collegiums consisting of what were perceived to be good judges, punished two of the best judges from the Gujarat high court – Justice Jayant Patel, who was number two in the Karnataka high court and was expected to be its chief justice, and Justice Akil Kureshi, number two-judge at the Gujarat high court who would have become chief justice of another high court soon – by transferring them to the Allahabad and the Bombay high courts respectively.
The recent recommendation of the collegium to recommend two outstanding judges – Chief Justices Nandrajog and Menon – for elevation to Supreme Court and the subsequent withdrawal of that recommendation on what appeared to be flimsy grounds, raises serious issues about the independence of the system.
As against that, Justice Gavai reflected the lack of an “independent and fearless” judicial approach on at least two occasions which have come to my attention. In one case, presiding over the Nagpur bench of the Bombay high court, he allowed Criminal Application No.824/2014, quashing criminal proceedings pending against chief minister of Maharashtra Devendra Fadnavis, in respect of several offences, many of which were not compoundable.
The order was passed despite many office objections, just a day after the application was filed on December 23, 2014. This was done on a joint petition of the complainant and the accused. The judgment was clearly of assistance to the chief minister, who perhaps had failed to disclose the said case in his nomination form and was facing an Election Petition No.1 of 2014 on amongst others, that ground.
Secondly, Justice Gavai alongside Justice S.B. Shukre, gave press interviews to the Indian Express on November 27, 2017, on the matter concerning the unfortunate and suspicious death of late Judge Loya, the CBI Judge who was hearing the case involving murder charges against Amit Shah. The report stated, “Both judges said there was nothing about the circumstances of the death to raise any suspicion.”
Giving such an interview was not just unprecedented, but highly improper. Judges do not speak to the press, as the ‘Restatement of Values’ adopted by the Supreme Court prohibits it. But what is more shocking is that two days later, the inquiry report by the Commissioner of Intelligence, which was made public, virtually recorded what these two judges had told the press, although in the words of other witnesses.
I did write to the Collegium on November 2, 2018, pointing out the above facts regarding Justice Gavai. I know it was received and read by them. Yet, they neither acknowledged the same nor, I suppose, dealt with it on the administrative side while considering his elevation.
Both Justice Gavai and Justice Surya Kant them may be very good but there are many equally if not better judges available in the judiciary, and some of them senior too. So why bypass them at all?
As if this was not enough, the collegium hastily met to clear recommendations made by, amongst other high courts, the Madhya Pradesh high court. In so doing, it accepted the names of two and rejected the other three.
Amongst the two is Vishal Mishra, a young advocate, who in a normal situation would never have been recommended, being below the age bar adopted by the Collegium itself. He may be an extraordinary lawyer, but he also happens to be the nephew of Justice Arun Mishra, the fourth senior most judge of the Supreme Court.
His lordship sat on the bench on that fateful Saturday with the Chief Justice and Justice Sanjiv Khanna to virtually exonerate the CJI from the sexual harassment charges and caution the media against reporting on the same. His lordship then presided over the Bench to hear the conspiracy theory against the CJI and the judiciary propounded by one Utsav Bains, and referred the issue to retired Justice A.K. Patnaik, under whom the CJI had once worked in the Gauhati high court.
What is one expected to make out of all this?
The timing of the same is equally suspect, as the general elections are on. Results will be out on May 23 and the new government will be formed soon thereafter. So where was the tearing hurry to do this?
The time has come for a nationwide debate, especially because the justice delivery system is failing the expectations of people. It is not just a delay in deciding cases, but the manner of the decision-making process itself. These decisions are coming under increasing criticism. It has become all the more necessary for the collegium to be vigilant in making such appointments.
The citizens are the real stakeholders and yet they have no voice in this process. Judges must make themselves open to suggestions, criticism, objections and be transparent to the nation. Nothing short of a fundamental and revolutionary change in their mindset will keep the failing public confidence. Let us hope that they will open their eyes.
Dushyant Dave is a senior advocate and former president of the Supreme Court Bar Association.
This article was originally published on Bar & Bench.